The
sole issue in this appeal is whether Connecticut law permits
a third petition for a writ of habeas corpus (third habeas)
to vindicate a claim of ineffective assistance of counsel
during what is commonly known as a ‘‘habeas on a
habeas, '' namely, a second petition for a writ of
habeas corpus (second habeas) challenging the performance of
counsel in litigating an initial petition for a writ of
habeas corpus (first habeas), which had claimed ineffective
assistance of counsel at the petitioner's underlying
criminal trial or on direct appeal. See Lozada v.
Warden, 223 Conn. 834, 843, 613 A.2d 818 (1992). The
petitioner, Nabeel Kaddah, [1] appeals[2] from the judgment of the
habeas court dismissing his third habeas petition alleging,
inter alia, ineffective assistance of habeas counsel during
litigation of his second habeas petition. On appeal, the
petitioner claims that the habeas court improperly determined
that the statutory right of indigent habeas petitioners to
counsel under General Statutes § 51-296
(a)[3]
is limited to ‘‘effective representation by . . .
first habeas counsel, '' thus rendering the third
habeas petition challenging counsel's performance in the
second habeas proceeding not cognizable as a matter of law.
Given the concession by the respondent, the Commissioner of
Correction (commissioner), that § 51-296 (a) provides a
statutory right to assigned counsel in a second habeas
proceeding that necessarily includes the right to competent
counsel, we conclude that our common law authorizes a third
habeas petition as a proper vehicle to vindicate that right.
Accordingly, we reverse the judgment of the habeas court
dismissing the counts of the third habeas petition that
claimed ineffective assistance of prior habeas
counsel.[4]

The
record reveals the following relevant facts and procedural
history. Following a jury trial, the petitioner was convicted
of murder, attempted murder, an dun law-ful restraint in the
first degree. See State v. Kaddah, 250 Conn. 563,
564, 736 A.2d 902 (1999). This court subsequently affirmed
the petitioner's conviction on direct appeal.
Id., 581. The petitioner, then represented by
Attorney Salvatore Adamo, filed his first habeas petition
alleging ineffective assistance of counsel at his trial and
on direct appeal. See Kaddah v. Commissioner of
Correction, 105 Conn.App. 430, 433-34, 939 A.2d 1185,
cert. denied, 286 Conn. 903, 943 A.2d 1101 (2008)
(Kad-dah I). The habeas court, White, J.,
denied the first habeas petition, along with the
petitioner's petition for certification to appeal. See
Kaddah v. Commissioner of Correction, 299 Conn. 129,
132, 7 A.3d 911 (2010) (Kaddah II). The petitioner
appealed from Judge White's denial of the first habeas
petition to the Appellate Court, but withdrew that appeal
before that court rendered judgment. Id., 132-33.

The
petitioner, represented by Attorney Joseph

Visone,
then filed a second habeas petition alleging ineffective
assistance of habeas counsel by Attorney Adamo in the first
habeas proceeding.[5]Kaddah I, supra, 105 Conn.App.
434. The habeas court, Fuger, J., denied this
petition, along with the petitioner's petition for
certification to appeal. Id. The Appellate Court
subsequently dismissed the petitioner's appeal from the
denial of the second habeas petition, concluding that Judge
Fuger had not abused his discretion by denying the
petitioner's petition for certification to appeal.
Id., 446.

The
petitioner later filed the third habeas
petition[6]alleging, inter alia, [7] that Attorney
Visone had rendered ineffective assistance during litigation
of his second habeas petition by failing to raise certain
claims relating to the jury instructions used at his criminal
trial. After a three day habeas trial, the habeas court, sua
sponte, asked the parties to brief ‘‘the question
of whether the petition's allegations assert a cognizable
habeas corpus claim for which this court can provide
relief.'' See Practice Book § 23-29 (2).
Specifically, the habeas court questioned whether this
court's decision in Lozada v. Warden, supra, 223
Conn. 834, ‘‘which recognized the viability of a
habeas corpus claim of ineffective assistance of first habeas
counsel, [should] be extended ad infinitum.''
(Emphasis omitted.) The petitioner and the commissioner
subsequently filed post trial briefs in which they agreed
that the petitioner's claim in his third habeas petition
was cognizable under Lozada.[8] Despite the parties'
agreement on this point, the habeas court nevertheless
concluded that the petitioner had failed to state a
cognizable claim and dismissed the remaining counts of the
third habeas petition. See footnote 4 of this opinion.

In its
memorandum of decision, the habeas court began its analysis
with this court's decision in Lozada v. Warden,
supra, 223 Conn. 834, which authorized habeas on habeas
petitions, and the Appellate Court's decision in
Sinchak v. Commissioner of Correction, 126 Conn.App.
684, 692, 14 A.3d 343 (2011), which held that § 51-296
(a) requires the appointment of counsel for such petitions.
The habeas court declined, however, ‘‘to apply
the same rubric used by the Supreme Court in Lozada
to the [Appellate Court's] holding in Sinchak
and conclude, therefore, because a [second habeas] petitioner
has a right to appointment of habeas counsel under §
51-296 (a), that the petitioner must also have the companion
right to habeas corpus relief based on the poor performance
of second habeas counsel through a third habeas
[proceeding].'' The habeas court determined that this
‘‘syllogistic reasoning'' would have the
‘‘absurd result'' of fostering infinite
habeas claims, which would defy ‘‘concepts of
certainty, finality, and judicial economy.'' The
habeas court determined that ‘‘it would stretch
the meaning of the phrase ‘arising from a criminal
matter' [as used in § 51-296 (a)] beyond all
linguistic boundaries to interpret that phrase to mean
‘arising from a habeas proceeding which arose from a
habeas proceeding . . . which arose from a criminal matter,
' ad infinitum. The more rational and plausible
construction of that ambiguous phrase is that the legislature
only had a first level habeas claim in mind when it created
the statutory right to counsel and never intended to create a
system of ineffective assistance claims in habeas cases
[that] resembles the Russian Matryoshka dolls, each embraced
within a more expansive one, without end.'' (Emphasis
omitted.) Accordingly, the habeas court concluded that the
petitioner's allegations did not raise a cognizable
habeas corpus claim for which the court could provide relief,
and rendered judgment dismissing the remaining counts of the
third habeas petition. The habeas court subsequently granted
the petitioner's petition for certification to appeal,
and this appeal followed. See footnote 2 of this opinion.

On
appeal, the petitioner, relying primarily on Lozada v.
Warden, supra, 223 Conn. 834, and Sinchak v.
Commissioner of Correction, supra, 126 Conn.App. 684,
claims that the habeas court improperly determined that
§ 51-296 (a) did not afford him a right to competent
counsel for his second habeas petition that could be
vindicated by a third habeas petition. The petitioner argues
that any other reading of the broad statutory language of
§ 51-296 (a), namely, ‘‘any habeas corpus
proceeding arising from a criminal matter, '' would
render the right to counsel in the second habeas proceeding
illusory and foster the absurd result of allowing the
appointment of incompetent counsel to represent petitioners
in that proceeding. The petitioner contends that the habeas
court's concern of infinite habeas on habeas petitions is
addressed by existing procedures, such as dismissals under
the doctrines of collateral estoppel, successive petitions,
and for frivolous pleading, along with the amendments to
General Statutes § 52-470[9] via the 2012 habeas reform
legislation. See Public Acts 2012, No. 12-115, § 1. The
petitioner further emphasizes that the legislature took no
action to limit the right to counsel under § 51-296 (a)
when it enacted the 2012 habeas reform measures subsequent to
the Appellate Court's decision in Sinchak.

In
response, the commissioner concedes the correctness of
Sinchak v. Commissioner of Correction, supra, 126
Conn.App. 684, in which the Appellate Court held that §
51-296 (a) provides a right to counsel in a second habeas
proceeding. The commissioner also acknowledges that the
Appellate Court's holding in Sinchak necessarily
encompasses the right to assistance by competent counsel in
the second habeas proceeding. Retreating from the concession
made before the habeas court; see footnote 8 of this opinion;
the commissioner contends, however, that a claim of
ineffective assistance of second habeas counsel is not a
cognizable basis for habeas relief under Connecticut law.
Specifically, the commissioner argues that nothing in the
text or legislative history of § 51-296 (a) indicates
that the legislature intended to authorize a third habeas
petition to vindicate such a right.[10] The commissioner also
relies on In re Jonathan M., 255 Conn. 208, 209, 764
A.2d 739 (2001), a termination of parental rights case, in
support of the proposition that the existence of a right to
counsel in a given situation does not mean that a habeas
corpus petition is available to vindicate that right. To this
end, the commissioner agrees with the finality concerns
stated by the habeas court, and argues that, as a matter of
the fundamental fairness that underlies the common-law habeas
remedy, we should decline to permit habeas petitions raising
claims of ineffective assistance beyond the second habeas
petition alleging ineffective assistance because such claims
are extremely difficult to prove, meaning that the utility of
allowing such petitions is outweighed by the associated costs
on the judicial system, including assigned counsel, victims,
and witnesses. We, however, agree with the petitioner, and
conclude that a third habeas petition is available as a
matter of fundamental fairness to vindicate the statutory
right under § 51-296 (a) to competent counsel in
litigating a second habeas petition.

Before
considering whether a third habeas petition is a cognizable
remedy, we ordinarily would begin by determining the
existence or scope of the statutory right to counsel at issue
in the second habeas petition under § 51-296 (a). This
inquiry is, however, unnecessary in this appeal because the
commissioner concedes that, in Sinchak v. Commissioner of
Correction, supra, 126 Conn.App. 692, the Appellate
Court properly determined that, under § 51-296 (a),
there is a right to counsel in a second habeas proceeding
brought pursuant to Lozada v. Warden, supra, 223
Conn. 834, and that right to counsel necessarily encompasses
the right to competent counsel. We exercise our
discretion[11] to accept this significant
concession[12] because it is consistent with our case
law holding that it ‘‘would be absurd to have the
right to appointed counsel who is not required to be
competent, '' and that ‘‘§ 51-296
(a) would become an empty shell if it did not embrace the
right to have the assistance of a competent
attorney.'' Id., 838-39; see also Gipson
v. Commissioner of Correction, 257 Conn. 632, 639 n.14,
778 A.2d 121 (2001) (‘‘although the state
disputes the petitioner's claim of a right to counsel in
connection with the filing of a petition for certification,
the state does not dispute the principle that the right to
counsel, if such right exists, includes the right to
competent counsel''); State v. Anonymous,
179 Conn. 155, 160, 425 A.2d 939 (1979) (holding in
termination of parental rights case that
‘‘[w]here . . . as here, a statute . . . or
practice book rule . . . mandates the assistance of counsel,
it is implicit that this means competent counsel''
[citations omitted]). Simply put, we agree with the parties
that nothing in the text of § 51-296 (a) or our
state's appellate case law interpreting that provision
provides any basis for the habeas court's conclusion that
a petitioner has the right to counsel in a second habeas
petition, but not the right to effective assistance from that
attorney. Accordingly, we turn to the commissioner's
contention that a third habeas petition may not be used to
vindicate the right to competent counsel in prosecuting a
second habeas petition.

In
determining whether a third habeas petition is an available
remedy to enforce the right to the effective assistance of
counsel in a second habeas proceeding, we begin with
Lozada v. Warden, supra, 223 Conn. 834. In
Lozada, this court concluded that a second habeas
petition is an available remedy to vindicate a claim of
ineffective assistance of counsel in prosecuting a first
habeas petition claiming ineffective assistance at trial or
on direct appeal. Id., 843. In rejecting the
respondent's argument that the writ of habeas corpus is
‘‘reserved solely for claims arising under the
constitution, '' and is, therefore, ‘‘not
available'' to vindicate the statutory right to
counsel in a habeas corpus proceeding under § 51-296
(a), [13] we observed that ‘‘the writ
of habeas corpus is available as a remedy for a miscarriage
of justice or other prejudice. . . . As this court stated in
Bunkley v. Commissioner of Correction, 222 Conn.
444, 460-61, 610 A.2d 598 (1992), the principal purpose of
the writ of habeas corpus is to serve as a bulwark against
convictions that violate fundamental fairness. . . . This
court has taken the same view. To mount a successful
collateral attack on his conviction a prisoner must
demonstrate a miscarriage of justice or other prejudice and
not merely an error which might entitle him to relief on
appeal.'' (Citations omitted; internal quotation
marks omitted.) Lozada v. Warden, supra, 223 Conn.
839-40.

‘‘Indeed
. . . this court, in Safford v. Warden, 223 Conn.
180, 191 n.13, 612 A.2d 1161 (1992), put the issue to rest
when it recognized that the great writ of liberty is not a
remedy for constitutional violations exclusively, albeit most
cases in which the remedy has been applied involve issues of
fundamental fairness that implicate constitutional rights.
Surely, fundamental fairness opens the door for relief by
habeas corpus when the state, in discharging its statutory
duty, appoints incompetent counsel.'' Lozada v.
Warden, supra, 223 Conn. 840; see also Fay v.
Noia, 372 U.S. 391, 400-402, 83 S.Ct. 822, 9 L.Ed.2d 837
(1963) (describing common-law history of ‘‘[g]eat
[w]rit'').

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Notably,
in recognizing the right to bring a second habeas petition to
challenge counsel&#39;s performance in the first habeas
proceeding, this court in Lozada also rejected the
respondent&#39;s argument that &lsquo;&lsquo;the writ [of
habeas corpus] is available only to attack the validity of
the underlying criminal judgment or to challenge a wrongful
confinement.&#39;&#39; Lozada v. Warden, supra, 223
Conn. 841. Citing the works of Chief Justice Zephaniah Swift
and William Blackstone for a historical overview of the writ
as a common-law remedy, this court observed that the
&lsquo;&lsquo;writ of habeas corpus, as it is employed in the
twentieth century . . . does not focus solely upon a
direct attack on the underlying judgment or upon release
from confinement.&#39;&#39; (Emphasis added.) Id.
This court concluded that &lsquo;&lsquo;the subject of the
writ- that is, whether the accused had reasonably competent
habeas and trial counsel-are matters that ultimately
challenge the underlying conviction. The respondent does not
question that if this were the petitioner's first habeas
corpus petition, he would be entitled to challenge the
competency of his trial attorney, even though the
...

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